Copyright Co-incidence or Caught Red Handed?

January 31st 2012

A recent UK decision on copyright in photos has stirred up some debate as to whether or not copyright has “gone too far”. The judgment deserves a careful read – it is much less controversial than many commentators make out.

The case involved two photos of a street scene, with the British Houses of Parliament in the background, with a red bus and Westminster Bridge in the foreground.

As the judge pointed out, however, the case is not about whether photographers infringe copyright by taking photos of the same everyday scene. Assuming the photographers just take photos of what’s already there, such a situation is unlikely to ever raise copyright problems between photographers.

Rather, in this case, both photos resulted from the photographers applying photoshop techniques to create very specific effects – and, importantly, one copying the other’s techniques to achieve a very particular similarity.

For example, in Photograph 1, the first photographer (Mr. Fielder, who created his image for his souvenir company) spent a considerable amount of time on his computer:

strengthening the red colour of the bus;

removing the sky by cutting around the skyline of the buildings to create a blank white “sky”;

making the entire image – except for the bus – “grey-scale” monochrome;

removing a number of people from the scene (particularly to give a clear foreground); and

stretching the whole original image to change the perspective (so the verticals in the buildings were truly vertical).

Compare this to Photograph 2 (produced by Mr. Houghton for a tea company for its packaging) which the judge found infringed copyright because it copied important and distinctive parts of the compositional and visual effects in the first photo.

In particular, the judge found that the second photographer copied the strong red of the bus juxtaposed with the grey-scale of the buildings, the “framing” of the bus by the Houses of Parliament, and the blank white of the sky.

The judge also found that the similarities between the two photos were not just a co-incidence but the result of actual copying. Indeed, the tea company had previously settled a similar complaint about an earlier photo with the souvenir company. This is a critical point – for there to be an infringement of copyright, there must be actual copying. If the two images had been independently developed and were just co-incidentally similar there would have been no infringement. There’s no monopoly on a scene.

It’s important to note that the judge clearly stated that the idea of putting together iconic images – here, a red Routemaster bus, the Houses of Parliament and Westminster Bridge – is a common one. The judge also noted that the technique of highlighting an iconic object like a bus against a black and white image is not unique.

The judge did not, therefore, find that copyright had been infringed on these bases, and there is nothing in the judgment to suggest that an idea for a photo is protected, or that a technique is protected or that photographers have to be worried about whether or not another photographer has already taken a photo from the same spot or of the same everyday scene.

Rather, the judge emphasised that the first photo’s appearance was the product of deliberate choices and deliberate manipulations by the first photographer, and that these had been actually copied by the tea company. In other words, what photographers should avoid is basing their photos on other people’s photos (including when using digital editing techniques).

If you need advice on copyright as it applies to photos or to photography, contact copyright lawyer Adam Simpson or Ian McDonald (Special Counsel, Copyright) at Simpsons Solicitors. Simpsons acts for a wide range of professional photographers and organisations who use or commission photos.